TERMS AND CONDITIONS
Please read these Terms and Conditions, carefully before registering to purchase Services offered on this website operated by Silktide Limited located at Brunel Parkway, Pride Park, Derby DE24 8HR, a company registered in England under company number: 4242422 and VAT No: 772 5263 20.
In this Agreement, the following words shall have the following meanings:
|“Business Day”||means Monday to Friday excluding any national holiday in England and Wales.|
|“Business Hours”||means 9 am to 5 pm (UK time);|
|“Company”||means Silktide Limited;|
|“Confidential Information”||means any and all information in whatsoever form relating to the Company or the Customer, or the business, prospective business, finances, technical processes, computer software (both source code and object code), Intellectual Property Rights or finances of the Company or the Customer (as the case may be), or compilations of two or more items of such information, whether or not each individual item is in itself confidential, which comes into a party’s possession by virtue of its entry into this Agreement or provision of the Services, and which the party regards, or could reasonably be expected to regard, as confidential and any and all information which has been or may be derived or obtained from any such information;|
|“Consequential Loss”||means pure economic loss, losses incurred by any client of the Customer or other third party, loss of profits (whether categorised as direct or indirect loss), losses arising from business interruption, loss of business revenue, goodwill or anticipated savings, losses whether or not occurring in the normal course of business, wasted management or staff time and loss or corruption of data;|
|“Customer Data”||means all data imported into the Services for the purpose of using the Services or facilitating the Customer’s use of the Services;|
|“Customer”||means the company or person who completes the Order Form;|
|“Effective Date”||means the date set out in the Order Form;|
|“Fees”||means the fees set out in the Order Form;|
|“Force Majeure”||means anything outside the reasonable control of a party, including but not limited to, acts of God, fire, storm, flood, earthquake, explosion, accident, acts of the public enemy, war, rebellion, insurrection, sabotage, epidemic, quarantine restriction, labour dispute, labour shortage, power shortage, including without limitation where Company ceases to be entitled to access the Internet for whatever reason, server crashes, deletion, corruption, loss or removal of data, transportation embargo, failure or delay in transportation, any act or omission (including laws, regulations, disapprovals or failures to approve) of any government or government agency;|
|“Initial Term”||means a period of 12 (twelve) months starting on the Effective Date;|
|“Intellectual Property Rights”||means all copyrights, patents, utility models, trade marks, service marks, registered designs, moral rights, design rights (whether registered or unregistered), technical information, know-how, database rights, semiconductor topography rights, business names and logos, computer data, generic rights, proprietary information rights and all other similar proprietary rights (and all applications and rights to apply for registration or protection of any of the foregoing) as may exist anywhere in the world;|
|“Order Form”||means the online order form completed by the Customer to purchase Services from the Company;|
|“Renewal Term”||means a period of 12 (twelve) months;|
|“Services”||means the software applications services (including any computer software programmes and, if appropriate, updates thereto) of the Company, set out in the Order Form;|
|“Term”||means the Initial Term plus any Renewal Terms together;|
|“Terms and Conditions”||means these terms and conditions published at https://prospect.silktide.com/terms/ as amended from time to time.|
2.1 The Customer engages the Company and the Company agrees to provide the Services to the Customer for the Term in accordance with the terms of this Agreement.
2.2 The Services shall be made available to Customers via the Internet during any calendar month at least 95% on Business Days during Business Hours in accordance with the terms of this Agreement.
3. Licences & Intellectual Property Rights
3.1 Subject to the Customer’s payment of the Fees, the Customer is granted a non-exclusive and non-transferable licence to use the Services (including any associated software, Intellectual Property Rights and Confidential Information) during the Term for the Customer’s internal business operations. Such licence shall permit the Customer to make such copies of software or other information as are required for the Customer to receive the Services via the Internet. Where open source software is used as part of the Services, such software use by the Customer will be subject to the terms of the open source licences.
3.2 Disassembly, decompilation or reverse engineering and other source code derivation of the software comprised within the Services is prohibited. To the extent that the Customer is granted the right by law to decompile such software in order to obtain information necessary to render the Services interoperable with other software (and upon written request by the Customer identifying relevant details of the Services(s) with which interoperability is sought and the nature of the information needed), the Company will provide access to relevant source code or information. The Company has the right to impose reasonable conditions including but not limited to the imposition of a reasonable fee for providing such access and information.
3.3 Unless otherwise specified in this Agreement, the Services are provided and may be used by the Customer in conjunction with its existing systems and applications to facilitate the Customers use of the Services with its employees, who are permitted to access and use the Services. The Customer may not: (i) lease, loan, resell or otherwise distribute the Services save as permitted in writing by the Company; (ii) use the Services to provide ancillary services related to the Services; or (iii) except as permitted in this Agreement, provide access to or allow use of the Services by or on behalf of any third party.
3.4 All Intellectual Property Rights and title to the Services (save to the extent they incorporate any Customer or third party owned item) shall remain with the Company and/or its licensors and no interest or ownership in the Services, the Intellectual Property Rights or otherwise is transferred to the Customer under this Agreement. No right to modify, adapt, or translate the Services or create derivative works from the Services is granted to the Customer. Nothing in this Agreement shall be construed to mean, by inference or otherwise, that the Customer has any right to obtain source code for the software comprised within the Services.
3.5 The Customer shall retain sole ownership of all rights, title and interest in and to Customer Data and shall have the sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data.
3.6 The Customer warrants and represents that it shall maintain reasonable security measures (as may change over time) covering, without limitation, confidentiality, authenticity and integrity to ensure that access to the Services granted under this Agreement is limited as set out in this Agreement.
3.7 The Company may take and maintain technical precautions to protect the Services from improper or unauthorised use, distribution or copying.
4. Fees, Invoicing and Payments
4.1 The Company is entitled to refuse any order placed by a Customer. An order is accepted once the Customer is sent an email confirmation invoice.
4.2 Fees will be charged at the rates set out in the Order Form. All Fees are exclusive of VAT and are payable within 30 (thirty) days of the date of invoices, without set-off, counterclaim deduction or withholding.
4.3 The Company reserves the right to increase the Fees after expiry of the Initial Term, once at the beginning of each Renewal Period. Any increase shall not exceed the percentage increase in the Retail Price Index for the 12 (twelve) month period prior to notice of such increase and the Company shall give the Customer written notice of any increase at least 30 (thirty) days prior the effective date of the increase. If the increase in charges is not acceptable to the Customer, the Customer must terminate the Agreement by giving written notice to the Company prior to the expiry of the 30 (thirty) day period, otherwise the increase shall be deemed to be accepted.
4.4 If payment of any Fees is overdue, the Company may, without liability to the Customer, disable the Customer’s password, account and access to all or part of the Services and the Company shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remains unpaid.
4.5 The Company shall charge interest on any overdue amount at the rate of 2% (two percent) per annum above Barclay’s base rate from time to time or the statutory applicable rate, whichever is higher. The Company also reserves the right to recover any costs and reasonable legal fees it incurs in recovering overdue payments.
5.1 The Company warrants to the Customer that (i) it has the right to license the Services and that the Services will operate to provide the facilities and functions implemented by the Company; and (ii) that by performing the Services the Company will not infringe the Intellectual Property Rights of any third party. The foregoing warranties do not: (i) cover deficiencies or damages relating to any third party components not furnished by the Company; or (ii) any third party provided connectivity necessary for the provision or use of the Services.
5.2 In the event of a breach of the warranties under section 5.1, the Company shall have no liability or obligations to the Customer other than to reimburse the Fees for the Services.
5.3 The Customer warrants and represents that: (i) it has full corporate power and authority to enter into this Agreement and to perform its obligations; (ii) the execution and performance of its obligations under this Agreement does not violate or conflict with the terms of any other agreement to which it is a party and is in accordance with any applicable laws; (iii) it shall respect all applicable laws and regulations, governmental orders and court orders, which relate to this Agreement; and (iv) it rightfully owns the necessary user rights, copyrights and ancillary copyrights and permits required for it to fulfil its obligations under this Agreement.
5.4 Except as expressly stated in this Agreement, all warranties and conditions, whether express or implied by statute, common law or otherwise (including but not limited to satisfactory quality and fitness for purpose), are hereby excluded to the fullest extent permitted by law. No warranty is made regarding the results of usage of the Services or that the functionality of the Services will meet the requirements of the Customer or that the Services will operate uninterrupted or error free.
6.1 The Company does not exclude or limit its liability to the Customer for fraud, death or personal injury caused by any negligent act or omission or wilful misconduct of the Company in connection with the provision of the Services.
6.2 In no event shall the Company be liable to the Customer whether arising under this Agreement or in tort (including negligence or breach of statutory duty), misrepresentation or however arising, for any Consequential Loss.
6.3 Subject to sections 6.1 and 6.2, the total liability of the Company (whether in contract, tort or otherwise) under or in connection with this Agreement or based on any claim for indemnity or contribution shall not exceed 100% (one hundred) per cent of the total Fees (excluding any VAT, duty, sales or similar taxes) paid or payable by the Customer to the Company during the preceding 12 (twelve) month period.
6.4 In no event shall the Customer raise any claim under this Agreement more than 1 (one) year after: (i) the discovery of the circumstances giving rise to such claim; or (ii) the effective date of the termination of this Agreement.
6.5 The Customer acknowledges and agrees that in entering into this Agreement, the Customer had recourse to its own skill and judgement and has not relied on any representations made by the Company, any employees or agents of the Company.
7. Intellectual Property
7.1 The Company, at its own expense, shall: (i) defend, or at its option, settle any claim or suit brought against the Customer by a third party on the basis that use of the Services is an infringement of any Intellectual Property Rights of a third party (excluding any claim or suit deriving from any Customer provided item); and (ii) pay any final judgement entered against the Customer on such issue or any settlement thereof, provided that: (a) the Customer notifies the Company promptly of each such claim or suit; (b) the Company is given sole control of the defence and/or settlement; and (c) the Customer fully co-operates and provides all reasonable assistance to the Company in the defence or settlement.
7.2 If all or any part of the Services becomes, or in the opinion of the Company may become, the subject of a claim or suit of infringement, the Company at its own expense and sole discretion may: (i) procure for the Customer the right to continue to use the Services or the affected part thereof; or (ii) replace the Services or affected part with other suitable non-infringing service(s); or (iii) modify the Services or affected part to make the same non-infringing.
7.3 The Company shall have no obligations under this section 7 to the extent that a claim is based on: (i) the combination, operation or use of the Services with other services or software not provided by the Company, if such infringement would have been avoided in the absence of such combination, operation or use; or (ii) use of the Services in any manner inconsistent with this Agreement; or (iii) the negligence or wilful misconduct of the Customer.
7.4 The Customer shall indemnify and hold the Company and its suppliers or agents harmless from and against any cost, losses, liabilities and expenses, including reasonable legal costs arising from any claim relating to or resulting directly or indirectly from: (i) any claimed infringement or violation by the Customer of any Intellectual Property Rights with respect to the Customer’s use of the Services outside the scope of this Agreement; (ii) any access to or use of the Services by a third party; (iii) use by the Company of any Customer provided item; and (iv) breaches of data protection law or regulations resulting from the Company processing data on behalf of and in accordance with the instructions of the Customer.
7.5 Subject to sections 7.1 to 7.4 inclusive, each party (‘the first party’) indemnifies and undertakes to keep indemnified the other party, its officers, servants and agents (‘the second party’) against any costs or expenses (including the cost of any settlement) arising out of any claim, action, proceeding or demand that may be brought, made or prosecuted against the second party by any person arising out of or as a consequence of an unlawful or negligent act or omission of the first party, its officers, servants or agents in any way connected with this Agreement whether arising from any failure by the first party to comply with the terms of this Agreement or otherwise.
7.6 The indemnity above extends to and includes all costs, damages and expenses (including legal fees and expenses) reasonably incurred by the second party in defending any such action, proceeding claim or demands.
8. Term and Termination
8.1 This Agreement will begin on the Effective Date and continue for the Initial Term. Upon expiry of the Initial Term the Agreement shall automatically renew for further Renewal Terms unless a party terminates early in accordance with its rights set out below in this section 8.
8.2 The Company may immediately terminate this Agreement or the provision of any Services provided pursuant to this Agreement if the Customer has used or permitted the use of the Services in breach of the terms of this Agreement.
8.3 Either party shall be entitled to terminate this Agreement at any time without notice if the Company is prohibited, under the laws of England or otherwise, from providing the Services.
8.4 Either party shall be entitled to terminate this Agreement at any time on written notice if the other party: (i) goes into voluntary or involuntary liquidation (otherwise than for the purpose of a solvent reconstruction or amalgamation) or has a receiver or administrator or similar person appointed or is unable to pay its debts within the meaning of s268 Insolvency Act 1986 or ceases or threatens to cease to carry on business or if any event occurs which is analogous to any of the foregoing in another jurisdiction; or (ii) commits a material breach of any term of this Agreement which, if capable of remedy, is not remedied within 5 (five) Business Days of receipt of a written notice specifying the breach and requiring it to be remedied; (iii) is prevented by Force Majeure from fulfilling its obligations for more than 28 (twenty eight) days.
8.5 Upon termination of this Agreement the Company shall immediately cease providing the Services to the Customer and all licences granted hereunder shall terminate. The Customer shall promptly pay the Company all unpaid Fees for the remainder of the Term. No Fees already paid shall be refunded if the Agreement is terminated prior to the end of the Term.
8.6 Termination of this Agreement for whatever reason shall not affect the accrued rights of the parties. All clauses which by their nature should continue after termination shall, for the avoidance of doubt, survive the expiration or sooner termination of this Agreement and shall remain in force and effect.
9. Confidential Information
9.1 Each party may use the Confidential Information of the other party only for the purposes of this Agreement. Each party must keep confidential all Confidential Information disclosed to it, except where the recipient of any Confidential Information is required to disclose the Confidential Information by law to any regulatory or governmental or other authority with relevant powers to which either party is subject.
9.2 Each party may disclose the Confidential Information of the other party to those of its employees and agents who need to know the Confidential Information for the purposes of this Agreement, but only if the employee or agent is bound by confidentiality undertakings equivalent to those set out in this Agreement.
9.3 Both parties agree to return (or destroy) all documents, materials or data containing Confidential Information to the disclosing party without delay upon completion of the Services or termination or expiry of this Agreement.
9.4 The obligations of confidentiality under this Agreement do not extend to information that: (i) as in the other party’s lawful possession before the negotiations leading to this Agreement; or (ii) is, or after the day this Agreement is signed, becomes publicly known other than through any act or omission of the receiving party; or (iii) is lawfully disclosed to the receiving party by a third party without restriction on disclosure; (iv) is independently developed by the receiving party, which independent development can be shown by written evidence; or (v) is required to be disclosed by law by any court of competent jurisdiction or by any regulatory or administrative body.
9.5 If either party is required to disclose any Confidential Information pursuant to clause 9.4(v) such party shall, where lawfully permitted to do so: (i) promptly consult with and take into account any comments from the other party prior to making any disclosure; and (ii) work with the other party to ensure that any exemptions or other legitimate means of preventing disclosure or limiting disclosure are used to the fullest extent possible.
9.6 The parties acknowledge and agree that without prejudice to the general confidentiality provisions in this clause 9 and without limitation, all information falling within the definition of Confidential Information as set out in clause 1 of this Agreement and any information which is supplied by the disclosing party to the receiving party pursuant to this Agreement or the negotiation thereof is: (i) Confidential Information the disclosure of which by the receiving party would be an actionable breach of confidence; or (ii) a trade secret of the disclosing party; and (iii) information, the disclosure of which would be likely to prejudice the commercial interests of the disclosing party or of any other person.
10. Data Protection and Customer Data
10.1 Each party undertakes to comply with its obligations under relevant applicable data protection laws, principles and agreements.
10.2 To the extent that personal data is processed using the Services, the parties acknowledge that the Company is a data processor and the Customer is a data controller and the parties shall comply with their respective statutory data protection obligations.
10.3 The Customer shall ensure that: (i) the personal data, which it supplies or discloses to the Company, has been obtained fairly and lawfully; and (ii) it will obtain all necessary approvals from persons whose data is being processed and registrations with authorities to permit the Company to transfer personal data to third parties pursuant to its obligations under this Agreement.
10.4 The Company confirms that it: (i) merely acts as a data processor; (ii) will only process data in accordance with the instructions of the data controller; and (iii) has taken, as well as its subcontractors, licensors and hosts, sufficient technical and organisational measures to safeguard personal data.
10.5 If a third party alleges infringement of its data protection rights, the Company shall be entitled to take measures necessary to prevent the infringement of a third party’s rights from continuing.
10.7 Customers are responsible for keeping copies of Customer Data used and stored on the Company’s servers. Customers are responsible for removing all Customer Data from the Services prior to the termination or expiry of this Agreement. Notwithstanding the aforesaid, the Company reserves the right to remove all Customer Data six months after the expiry or termination of this Agreement without giving the Customer any prior notice of such deletion.
11.1 Should a provision of this Agreement be invalid or become invalid then the legal effect of the other provisions shall be unaffected. A valid provision is deemed to have been agreed which comes closest to what the parties intended commercially and shall replace the invalid provision. The same shall apply to any omissions.
11.2 This Agreement constitutes the whole agreement and understanding between the parties and supersedes all prior agreements, representations, negotiations and discussions between the parties relating to the subject matter thereof.
11.3 No party may assign, transfer or subcontract its rights under this Agreement without the prior written consent of the other party, such consent shall not be unreasonably withheld, however the Company shall be entitled to assign the Agreement to any company in the Company’s group of companies.
11.4 The Company and the Customer are independent contractors and nothing in this Agreement will be construed as creating an employer-employee relationship.
11.5 Nothing contained in this Agreement is intended to be enforceable by a third party under the Contracts (Rights of Third Parties) Act 1999, or any similar legislation in any applicable jurisdiction.
11.6 If a party is wholly or partially prevented by Force Majeure from complying with its obligations under this Agreement, that party’s obligation to perform in accordance with the terms of this Agreement will be suspended. As soon as practicable after an event of Force Majeure arises, the party affected by Force Majeure must notify the other party of the extent to which the notifying party is unable to perform its obligations under this Agreement.
11.7 The Customer permits the Company to include Customer in a list of customers on the Company’s website or other promotional material in relation to the Services for marketing purposes.
11.8 Amendments to, or notices to be sent under this Agreement, shall be in writing and shall be deemed to have been duly given if sent by registered post or acknowledged fax to a party at the address given for that party in this Agreement.
11.9 This Agreement shall be governed by the laws of England and Wales. The courts of England shall have exclusive jurisdiction for the settlement of all disputes arising under this Agreement.